Marina v. Connolly

Citations

• 79 Cal. 517
• 21 P. 1093
• 1889 Cal. LEXIS 763

Syllabus

<p>Mortgage — Sale oe Part of Mortgaged Property—Foreclosure— Agreement for Bid — Fraud — Rights of Subsequent Lien-holder. — When one of several tracts mortgaged is sold by consent of the mortgagor, mortgagee, and pledgee of the mortgage, at its full market yalue, but for a price much less than the amount of the mortgage, and is deeded by the mortgagor, an agreement with the purchaser that the mortgage shall be foreclosed, and a title taken under foreclosure sale of puch tract for his benefit, that an increase of bid shall be made for his benefit upon that tract in the name of the plaintiff, and the certificate of purchase assigned to him by plaintiff, if obtained by such hid, and that If third parties obtain the tract at a higher price he should receive the amount of the agreed bid and quitclaim to the mortgagor, constitutes no fraud of which a subsequent judgment creditor who is made a party to the foreclosure can complain. The provision for an increased bid operates for his benefit in relieving the rest of the mortgaged property from the mortgage lien pro tanto.</p> <p>Id, — Recital in Deed of Mortgagor—Agreement for Foreclosure — Subsequent Liens. — The fact that a conveyance by a mortgagor of one of several tracts mortgaged recites that the title is taken by the purchaser subject to encumbrances does not preclude an arrangement of the purchaser with the mortgagee and his assignee by which the purchaser is also to take a title under foreclosure of the mortgage to the exclusion of other subsequent liens. The fact that the mortgagor was no party to such agreement is not a matter of which subsequent lien-holders can complain. If the property is sold for its full value, this is all subsequent lien-holders-can ask.</p> <p>Appeal — Review op Order Granting New Trial—Questions op Law. — The rule that every intendment is in favor of the order of the eourt below granting a new trial is not applicable, where the question presented is purely one of law, and this court is